In the name of transparency, the fight against money laundering, and freedom of the press, press consortia make it their business to seek suspicious financial flows, parallel to or upstream of police or judicial investigations.
Also, they tend to pin more or less known personalities on the basis of public documents that they can find on the internet.
These public documents are sometimes the result of data leaks, known as “Pandora papers”, “Panama papers”, etc… and also from official public registers.
These press organs sometimes go to work quickly and make hazardous deductions, to scoop up the scoop and entice the reader, or even, more legitimately, to try to bring about clarifications on a case.
People are thus publicly suspected and then filed in shared databases, such as World-Check, on which certain banks, poorly equipped in means of investigation - and above all wishing to close small accounts (<3ME) not very lucrative and at risk – , rush to check if the bank accounts they hold do not involve people targeted by these files.
They will hasten to close these accounts without explanation, and will thus be able to justify their compliance with the authorities of control and international cooperation, without spending too much.
The ICIJ is one of these consortia of journalists, and intends to participate in the fight against tax evasion and the impoverishment of Nations.
This type of consortium assumes that governments and public authorities manage public money correctly and that there is in any case no justification for fraud. No one will dispute that fraud is indeed reprehensible in itself in that it seeks to unduly evade its legal obligations, and that tax evasion can have the effect of impoverishing the conscientious taxpayer.
On the other hand, the opinion according to which the public authorities cannot provoke legitimate mistrust is unfortunately not shared.
Above all, a person can claim to be unjustly the victim of the oukazes of press organs, and complain that he has not benefited from the guarantees due to him within the framework of the investigations carried out by the judicial or administrative authorities.
These include guarantees of secrecy of the investigation, the presumption of innocence, and the possibility of being heard impartially before a conviction is pronounced.
What recourse does a person unjustly denounced have against the press?
The person denounced by the press can choose to “communicate” or not, and thus create such or such an image with the public, depending on their situation.
It will take care to reconcile its communication with the requirements of the secrecy of the investigations (provided for example by article 11.of the French code of criminal procedure), or other secrets, in particular business secrecy, provided for by the directive (EU) 2016/943 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 8 June 2016 on the protection of undisclosed know-how and business information (trade secrets) against unlawful acquisition, use and disclosure.
Thus article 11 of the French code of criminal procedure provides, in its version of the December 24, 2021:
Except in the case where the law provides otherwise and without prejudice to the rights of the defence, the procedure during the investigation and the instruction is secret.
Any person who participates in this procedure is bound by professional secrecy under the conditions and under the penalties provided for in Article 434-7-2 of the Criminal Code.
However, in order to avoid the dissemination of fragmented or inaccurate information or to put an end to a disturbance of public order or when any other imperative of public interest justifies it, the public prosecutor may, ex officio and at the request of the investigating court or the parties, directly or through a judicial police officer acting with his agreement and under his control, to make public objective elements drawn from the procedure which do not include any assessment of the property -founded the charges against the persons implicated.
On a legal level, the law of European countries offers an action for defamation against press organs, according to a particular procedure.
We will refer for example, for French law, to the law of July 29, 1881 on the freedom of the press and to its article 29 according to which:
Any allegation or imputation of a fact which undermines the honor or consideration of the person or body to which the fact is imputed is defamation. The direct publication or by way of reproduction of this allegation or this imputation is punishable, even if it is made in doubtful form or if it targets a person or a body not expressly named, but whose identification is made possible by the terms speeches, cries, threats, writings or printed matter, placards or posters incriminated.
Protection of privacy can also be sought, through, for example, Article 8 of the European Convention on Human Rights (or Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950
Everyone has the right to respect for his private and family life, his home and his
There may be interference by a public authority in the exercise of this right only for
provided that such interference is prescribed by law and constitutes a measure which, in
a democratic society, is necessary for national security, public safety,
economic well-being of the country, the maintenance of order and the prevention of crime
criminal offenses, the protection of health or morals, or the protection of the rights and freedoms
What are the recourses against the databases?
The right to the protection of personal data aims to sanction the processing, in particular computer processing, of personal data which infringes the freedoms or the consent of the person.
This right can be invoked against files and databases, internet search engines.
The files, registers, processing, search engines and other databases that collect personal data allow the person to be profiled, sometimes to their detriment.
Indeed, a query, in the database, on a name or other personal data, will inevitably result in drawing up a profile of the person concerned, adding a category and any possible negative opinion, public or not, from a journalistic source or not. , from an official source or not, depending on the type of database consulted.
The file, insofar as it allows direct and instantaneous access to the profile of a person from the information of one of his personal data, has a capacity for nuisance which can be particularly stinging when the database is public, without restriction of access, not reserved for law enforcement authorities, such as an internet search engine, for example.
In European Union law, it is Regulation (EU) 2016/679 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 27 April 2016 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (general data protection regulation) which provides for the personal data protection regime.
This protection is ensured by means of judicial and administrative remedies open to the citizen, and also by the initiative of dedicated authorities able to act in a network (for example, in the EU, network of national authorities of each of the Member States of the EU ).
This right to the protection of personal data includes a "right to be forgotten", provided for in Article 17 of the Regulation, which allows the erasure of personal data.
This right does not in any way call into question the freedom of expression of the press but makes it possible to restrict the processing of personal data (in other words the "registration of the person") when the fundamental rights of the person are at stake, in particular their privacy. and its safety.
It is therefore necessary to distinguish
- "the news" which appears spontaneously in the form of a bulletin on such and such a subject, according, precisely, to the news of the moment, which commands, and which freedom of expression intends to promote,
And on the other hand :
- the "processing of personal data" whose use requires the prior information of personal data; here it is the information of personal data, and not the “news”, which controls the search result.
We will lynch you: the right to be forgotten on the internet